Judge Refuses to Lift 5-Year-Old Patriot Act Gag Order

A federal judge on Tuesday declined to remove a gag order imposed on the president of a small ISP who wants to reveal the contents of a national security letter he received from the FBI.

The NSL demanded the president of the New York company provide the government with e-mails from a customer the government deemed a threat. An NSL, a type of self-issued subpoena fortified by the Patriot Act, allows the FBI to obtain telecommunication, financial and credit records relevant to a government investigation without a court warrant.

The case last hit the courts in December, when the 2nd U.S. Circuit Court of Appeals, in a decision with Sonia Sotomayor in the majority, narrowed the standard by which recipients of NSLs must keep mum.

Those supplying the requested data to the government are forbidden from disclosing their mandatory cooperation, and face up to five years in prison for breaching the gag. The government issues about 50,000 NSLs each year, and an internal audit showed widespread government abuse in connection to them.

On Tuesday, a New York judge ruling in the lawsuit brought by the anonymous ISP president, declined to lift the gag placed on him, despite the new gagging standards announced by the 2nd Circuit. The lower court judge’s decision was based on secret evidence the FBI provided.

The judge said the government claimed national security (.pdf) was at issue. Lifting the gag, he wrote, “could tip off the target of an ongoing investigation as well as other individuals who are under investigation.”

The plaintiff’s lawyers, of the American Civil Liberties Union, were not privy to what the government told U.S. District Judge Victor Marrero in private while urging him not to lift what is now a 5-year-old gag.

“Three years ago, I received a national security letter (NSL) in my capacity as the president of a small internet access and consulting business. The letter ordered me to provide sensitive information about one of my clients. There was no indication that a judge had reviewed or approved the letter, and it turned out that none had. The letter came with a gag provision that prohibited me from telling anyone, including my client, that the FBI was seeking this information. Based on the context of the demand — a context that the FBI still won’t let me discuss publicly — I suspected that the FBI was abusing its power and that the letter sought information to which the FBI was not entitled.”

Meanwhile, Sotomayor, now a U.S. Supreme Court justice, joined in the 2nd Circuit opinion in December that theoretically made it more difficult for the government to maintain an NSL gag order. The appellate court sent the ISP president’s gag challenge back to Judge Marrero.

The appellate panel concluded 3-0 that an NSL recipient must keep the letter secret only if the FBI certifies that disclosure of the NSL “may result in an enumerated harm that is related to an authorized investigation to protect against international terrorism or clandestine intelligence activities.” Before then, citing a criminal investigation was enough to impose a gag order.

As a practical matter, however, the lower court and appellate court rulings are of little value or use in establishing precedent. The government has issued hundreds of thousands of NSLs accompanied with gag orders, yet virtually nobody has challenged the gag provisions.

“To my knowledge, there’s three recipients who have ever challenged the NSL gag. That’s of the hundreds of thousands that have been issued,” said Melissa Goodman, an ACLU attorney on the case decided Tuesday.